Rutherford v. 6353 Joint Venture

On
Appeal from the 125th District Court Harris County, Texas
Trial Court Cause No. 2010-79144.

Panel
consists of Justices Boyce, Busby, and Wise.

MEMORANDUM OPINION

J.
Brett Busby Justice.

Appellant
James Rutherford guaranteed payment of a promissory note
payable to appellee 6353 Joint Venture. When the note went
unpaid, 6353 sued Rutherford on the guaranty. 6353 moved for
summary judgment on its claim, which the trial court granted.
Although Rutherford raises three issues in this appeal, we
need only address his first and second issues.

Rutherford
initially complains that the trial court erred when it
refused to dismiss 6353's lawsuit on the ground that 6353
did not have standing at the time the suit was filed because
it had assigned the Promissory Note to a third party. We
overrule this issue because the record establishes that 6353,
even if it had assigned the Promissory Note, possessed
standing at the time it filed suit as a result of its
indorsement of the Promissory Note with recourse.

Rutherford
argues in his second issue that the trial court erred when it
granted 6353's motion for summary judgment because 6353
failed to prove as a matter of law (1) that it was the owner
or holder of the Promissory Note, and (2) the amount owed
under the Promissory Note. We sustain this issue because 6353
failed to prove the amount owed under the guaranty as a
matter of law. We therefore reverse the trial court's
summary judgment and remand the case to the trial court for
further proceedings.

Background

Rutherford
is the owner of 6300 Interests, Ltd. He is also the majority
shareholder in Quality Infusion Care, Inc. On June 11, 2009,
6353 loaned 6300 Interests and Quality Infusion Care $675,
000 to finance the purchase of condominiums. Rutherford
signed the Promissory Note as president of both entities.
Simultaneously, Rutherford personally guaranteed payment of
the Promissory Note executed by 6300 Interests and Quality
Infusion Care. 6300 Interests and Quality Infusion Care
allegedly defaulted on the Promissory Note and 6353 sued
Rutherford on the guaranty.

6353
eventually moved for summary judgment on its claim against
Rutherford. 6353 sought to recover the unpaid balance of the
note and its attorney's fees. In addition to filing a
summary judgment response, Rutherford filed a motion to
dismiss the lawsuit arguing that 6353 lacked standing at the
time it filed suit because the Promissory Note had been
assigned to Texas Capital Bank. The trial court never
directly ruled on Rutherford's motion to dismiss. It did
grant 6353's motion for summary judgment, however,
awarding 6353 the principal sum of $390, 000, $39, 000
attorney's fees through trial, as well as additional
attorney's fees if Rutherford unsuccessfully appealed the
judgment. This appeal followed.

Analysis

I.6353 had standing at the time suit was
filed.

Rutherford
asserts in his first issue that the trial court erred when it
failed to dismiss 6353's lawsuit. Rutherford argues that
6353 did not have standing at the time the suit was
originally filed because it had previously assigned the
promissory note to Texas Capital Bank.

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